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The European Commission has withdrawn its request to review ACTA’s compatibility with the EU law in the European Court of Justice. The move virtually ensures the treaty will never be adopted in the Union.

­The European Comission’s move was reported by MEPs from the Socialists and Democrats alliance.

“I welcome this news from the Commission today,” said S&D Euro MP David Martin, the author of the parliamentary report on ACTA, as cited by The Register. “The EU cannot be party to an agreement without European Parliament ratification. MEPs overwhelmingly rejected ACTA in July and I am pleased that the Commission has acknowledged this is the end of the road for ACTA in the EU thanks to the Parliament.”

The European Commission made the appeal to the court in July, after ACTA (the Anti-Counterfeiting Trade Agreement) had received a knockout blow from the European Parliament. At the time MEPs roundly rejected the treaty with 478 votes against, and only 39 in favour.

Even before that, in February this year the adoption of ACTA was suspended due to mass protests against it, with critics slamming the agreement for its breaches of human rights, that it would protect copyright at the expense of freedom of speech on the Internet.

Intended as a global treaty, ACTA started to be developed in 2007 as a means to target copyright and patent violations in a wide range of industries. ACTA has been signed by the US, Australia, Canada, Japan, Morocco, New Zealand, Singapore, Mexico, South Korea and 22 EU member states.

Of all those countries, only Japan has ratified it so far. The treaty will come into force for the countries which ratified it when at least 5 more pass the relevant legislation.

The European Parliament has rejected ACTA, a controversial trade agreement, which was widely criticized over its likely assault on internet freedoms. Supporters of the treaty suggested postponing the crucial voting at the Parliament plenary on Wednesday, but members of the parliament decided not to delay the decision any further. MEPs voted overwhelmingly against ACTA, with 478 votes against and only 39 in favor of it. There were 146 abstentions.

The Anti-Counterfeiting Trade Agreement (ACTA) was dealt a major blow on April 12 when MEP David Martin, the European Parliament’s rapporteur for the agreement and member of the Committee responsible for delivering the recommendation [doc] to European Parliament to adopt or reject the agreement, announced that he would be recommending a “no” vote. While the prospects of the European Parliament ratifying the agreement seems to have fortunately lessened, it does not mean that it’s a fait accompli that the European Parliament will reject ACTA. As we’ve noted before, ACTA is a plurilateral agreement designed to broaden and extend existing intellectual property enforcement laws to the Internet. It was negotiated in secret by a handful of countries, in a process that intentionally bypassed the checks and balances of existing international IP norm-setting bodies without any meaningful input from national parliaments, policymakers, or their citizens. In our second post on the ACTA State of Play, we’ll look at what’s happening in Europe and why we should all be keeping a close eye on what’s happening in Brussels. (For those interested in US developments, please see our previous post here).

While the EU and 22 of its 27 member states signed ACTA in January, the European Parliament must vote to adopt it for it to become part of European Union law. A complex process is underway involving five European Parliamentary committees. The first step involves four committees: the Committee on Civil Liberties, Justice and Home Affairs (LIBE), the Committee on Industry, Research and Energy (ITRE), the Legal Affairs Committee (JURI), and the Development Committee (DEVE). Each must each review ACTA according to their Committee’s particular subject matter expertise, and deliver an opinion to the fifth and lead Committee, the International Trade Committee (INTA).

The INTA Committee plays the key role of recommending ACTA’s adoption or rejection to European Parliament. While INTA’s opinion is highly influential, it is not binding. The final step in the ratification process is a plenary vote of the Members of European Parliament. MEPs must decide whether to adopt or reject ACTA in its entirety; no amendments are allowed. The vote is currently scheduled for early July, but it may occur later. Here are two great infographics from the European Parliament and from French organizations La Quadrature du Net and Owni.eu which illustrate the whole process.

Apart from this process at the EU level, individual EU member states must decide whether or not to ratify ACTA. This is because the agreement requires countries to put in place broader criminal sanctions for those who infringe IP, and for those who aid and abet them. EU law is not harmonized in relation to criminal penalties for IP infringement. Criminal laws are within the exclusive legislative power of the individual EU member states and so they must ratify ACTA for those provisions to be given effect. Five member states have now suspended ratification of ACTA (Latvia, Poland, Czech Republic, Slovakia, the Netherlands and Bulgaria) and Germany has said that it will wait to see how the European Parliament votes before deciding to ratify.

There are many moving pieces in this puzzle and they each exert different levels of influence on the European Parliament’s vote. The European Commission referred ACTA to the European Court of Justice, the highest court in Europe, on February 22 for an opinion on its compliance with EU law. The European Parliament’s INTA Committee, at the instigation of MEP David Martin, the current Rapporteur of ACTA within the European Parliament, considered but rejected its own referral of ACTA to the European Court of Justice in March. If this had gone ahead, it would have delayed the European Parliament’s plenary vote beyond July. The European Data Protection Supervisor issued an opinion [pdf] on the European Parliament’s proposed accession to ACTA on April 24 that obliquely criticized ACTA by noting that it permits measures for indiscriminate monitoring of communications that would be disproportionate for small scale infringements. Specifically, it includes voluntary cooperative enforcement measures that would permit ISPs to process personal data beyond what is permitted under EU law, and lacks the necessary limitations and safeguards to protect EU citizens’ personal data under EU law.

On April 12, the Rapporteur of ACTA within the European Parliament, MEP David Martin of the INTA Committee, announced that he would be recommending that the European Parliament vote no on ACTA, but suggested that the Commission could negotiate an alternative proposal. His recommendation concluded that:

Your rapporteur therefore recommends that the European Parliament declines to give consent to ACTA. In doing so, it is important to note that increased IP rights protection for European producers trading in the global marketplace is of high importance. Following the expected revision of relevant EU directives, your rapporteur hopes the European Commission will therefore come forward with new proposals for protecting IP.

While this should indeed be seen as a major blow to the prospects of a speedy ratification by the European Parliament and a rebuke to the European Commission which took the lead in negotiating ACTA for the EU, it does not mean that ACTA is dead in the EU.

Last week, several of the four committees involved in the first step of the process were scheduled to publish their opinions and deliver them to the INTA committee. These opinions are likely to be heavily influenced by the appointed Rapporteur for each committee. They are reportedly equally divided. Two of the four Rapporteurs oppose ACTA and two are strong supporters. EDRi has posted a draft opinion of the influential Legal Affairs Committee (JURI) rapporteur, MEP Marielle Gallo, who is a strong ACTA supporter. She had previously been proposing a fast vote on her draft opinion within JURI, but on April 26, she pushed instead for JURI to postpone its vote on the opinion. This seems like a further delaying tactic by ACTA supporters to slow down the process within the European Parliament until they’ve got the numbers for a yes vote while the fierce lobbying campaign continues apace in Brussels.

Everything comes down to how MEPs vote in the Parliamentary plenary vote. MEPs in European Parliament are members of political parties, and analysts in Europe are now trying to tabulate how the political party groups will vote on ACTA. As Joe McNamee, the Brussels-based Advocacy Co-ordinator for European Digital Rightsnoted in an insightful piece last week, the numbers look closer than you might think: 52.5% of the Parliament opposed to ACTA, to 47.5% in favor, if you extrapolate from the views of the Rapporteurs of the four committees involved in the first ratification step:

To put it in another way, if just 20 MEPs have their minds changed as a result of the massive lobbying campaign currently underway and organised by the European Commission and big business interests, then ACTA will be adopted. The situation becomes even more precarious when we consider that it often happens that more than 5% of MEPs do not vote (either absent or abstaining) meaning that the chances of the current tiny majority being sufficient are more a matter of luck than anything else.

We are at a stage where every single vote in the European Parliament is of huge value. If the pro-ACTA message of the rapporteurs in the Legal Affairs and (shockingly) the Development Committee prevail, this will create a new momentum and will be used to “prove” that ACTA is a legitimate proposal.

McNamee continues:

Assuming that the anti-democratic elements in the European Parliament will not be allowed to have their way, there are two possible outcomes. The first is the anti-ACTA campaign will be anesthetised by complacency – assuming victory, citizens will stop contacting Parliamentarians, will not take part in demonstrations and will reassure MEPs that our attention span is so short that we can be ignored on ACTA, that we can be ignored on the upcoming IPRED Directive, that we can be ignored on the upcoming Data Retention Directive. And we reassure our opponents that no future democratic movement will be able to sustain a campaign as long as needed. We lose. Europe loses.

Or we do our duty for European democracy and maintain our pressure right up until the vote. And then we win. And Europe wins.

The future of ACTA as an international agreement will be decided in Europe. While recent media reports have led many people to conclude that ACTA is dead, this is unfortunately not true. Worse, it’s quite a dangerous misconception to have rebounding through the zeitgeist at a time when we need every possible vote in the European Parliament for ACTA to be rejected in July. Citizens in Europe and elsewhere must now clearly and loudly voice our concerns about this agreement to our elected representatives to counter-balance the content industry lobbyists that are hard at work in Brussels shoring-up support for ACTA. Now is the time to make your views heard. If you’re in the EU, contact your MEPs and urge them to vote no on ACTA.

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More information on how to have your views heard is at the following resources:

Germany has delayed its approval of the ACTA treaty after the Justice Ministry voiced its concerns about the legislation. It is the third EU country after Poland and the Czech Republic to challenge the controversial treaty.

­The Justice Ministry said that the European Parliament should vote on ACTA before it is considered by the state’s parliament.

Three of Germany’s parties, the Pirate Party, the Left Party and the Greens, have also spoken out against ACTA.

German protesters are expected to stage demonstrations in over 60 towns across the country on Saturday.

Earlier Poland and the Czech Republic had refused to approve the agreement. Both countries saw major protests in the streets. Critics of ACTA accuse its authors of hammering out the agreement in secret and say the deal will limit online freedom of speech.

On January 26, the controversial ACTA treaty was signed by the 22 of 27 European Union member states, and the EU itself. It now has to be ratified by the European Parliament and is scheduled to be debated in June.

ACTA is an international agreement aimed at protecting intellectual property. It shares similarities with the Stop Online Piracy Act (SOPA) in the US, which was shelved by lawmakers after a partial blackout by Wikipedia and Google in protest.

The ACTA treaty was negotiated by industrialized countries struggling for ways to fight intellectual property theft. The US, most of the EU, Australia, Canada, Japan and several other countries have signed the treaty.

If there’s one thing that encapsulates what’s wrong with the way government functions today, ACTA is it. You wouldn’t know it from the name, but the Anti-Counterfeiting Trade Agreement is a plurilateral agreement designed to broaden and extend existing intellectual property (IP) enforcement laws to the Internet. While it was only negotiated between a few countries,1 it has global consequences. First because it will create new rules for the Internet, and second, because its standards will be applied to other countries through the U.S.’s annual Special 301 process. Negotiated in secret, ACTA bypassed checks and balances of existing international IP norm-setting bodies, without any meaningful input from national parliaments, policymakers, or their citizens. Worse still, the agreement creates a new global institution, an “ACTA Committee” to oversee its implementation and interpretation that will be made up of unelected members with no legal obligation to be transparent in their proceedings. Both in substance and in process, ACTA embodies an outdated top-down, arbitrary approach to government that is out of step with modern notions of participatory democracy.

The EU and 22 of its 27 member states signed ACTA yesterday in Tokyo. This news is neither momentous nor surprising. This is but the latest step in more than three years of non-transparent negotiations. In December, the Council of the European Union—one of the European Union’s two legislative bodies, composed of executives from the 27 EU member states—adopted ACTA during a completely unrelated meeting on agriculture and fisheries. Of course, this is not the end of the story in the EU. For ACTA to be adopted as EU law, the European Parliament has to vote on whether to accept or reject it.

In the U.S., there are growing concerns about the constitutionality of negotiating ACTA as a “sole executive agreement”. This is not just a semantic argument. If ACTA were categorized as a treaty, it would have to be ratified by the Senate. But the USTR and the Administration have consistently maintained that ACTA is a sole executive agreement negotiated under the President’s power. On that theory, it does not need Congressional approval and thus ACTA already became binding on the US government when Ambassador Ron Kirk signed it last October.

The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.2

Senator Ron Wyden has been asking these questions for years, first demanding an explanation from USTR ambassador Ron Kirk, President Obama, and now the administration’s top international law expert Harold Koh. The distinction between executive agreement and treaty should not be lost on this administration: as a Senator, Vice President Joe Biden used the same argument to require the Bush administration to seek Senate approval for an arms reduction agreement.

Public interest groups and informed politicians have long lamented these problems with ACTA. But the impact of dubious backroom law-drafting is getting fresh attention in light of the powerful global opposition movement that has emerged out of last week’s Internet blackout protests. Activists and netizens all around the world have woken up to the dangers of overbroad enforcement law proposals drafted by monopoly industry lobbyists, and rushed into law through strategic lobbying by the same corporate interests that backed SOPA and PIPA. Tens of thousands are protesting in the streets in Poland as their ambassador signed the agreement in Tokyo. The EU Parliament’s website and others have come under attack for their involvement in these laws. The Member of the European Parliament who was appointed to be the rapporteur for ACTA in the European Parliament, Kader Arif, quit yesterday in protest. In a statement he said:

I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament’s demands that were expressed on several occasions in our assembly…

…This agreement might have major consequences on citizens’ lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade.

We couldn’t have said it better ourselves. ACTA may have been signed by public officials, but it’s crystal clear that they are not representing the public interest.

It is now up to the collective will of the public to decide what to do next, and for individuals to ask themselves what they want their government to look like. Do you believe in democracy? Do you believe that laws should be made to reflect our collective best interests, formulated through an open transparent process? One that allows everyone, from experts to civil society members, to analyze, question and probe an agreement that will lead to laws that will impact potentially billions of lives? If we don’t do anything now, this agreement is going to crawl itself into power. With the future at stake like this, it’s never too late to fight.

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If you live in Europe, follow these links to learn how you can take immediate action and stay informed on the latest updates:

For those in the U.S., you can demonstrate your opposition to the dubious decision to negotiate ACTA as a sole executive agreement to bypass proper congressional review by signing this petition on the whitehouse.gov website, demanding the Administration submit ACTA to the Senate for approval.

EFF will continue to monitor ACTA’s global implementation and watch for efforts to use ACTA to broaden US enforcement powers.

1. United States, Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea

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